Bachi Singh Jeena @APPELLANT@Hash State Of Uttarakhand & Another

Sharad Kumar Sharma, J

The petitioner was appointed as Ahalmad Class IV employee in the year 1986. The services of the petitioner stood promoted as Clerk in the office of

SDM Court, Lohaghat and later was transferred to Champawat. Looking to unblemished service records it is the case of the petitioner that in the year

2007 he was promoted as Nayab Nazeer (Senior Clerk) in SDM Court, Lohaghat. He was transferred to Patti, Tehsil Patti, District Champawat. His

case is that his entire service record is unblemished, and there is nothing adverse against him in his service records nor there was any complaint. While

the petitioner was serving as a Senior Clerk (Nayab Nazeer) in the office of Sub Divisional Magistrate, Tehsil Lohaghat, District Champawat. He has

challenged his order of transfer dated 23.05.2017, whereby the petitioner has been transferred from the office of Sub Divisional Magistrate, Lohaghat to

the Tehsil office Sri Purnagiri (Tanakpur) on the recommendation of local MLA.

The precise ground of the petitioner while giving challenge to transfer order is that this transfer order of the petitioner does not happen to be in public

interest nor on an administrative ground, rather this is an order, which has been solicited at the behest of the MLA Mr. Puran Singh Phartiyal, who has

written to Hon’ble the Chief Minister requesting to transfer the petitioner elsewhere, thus it was passed as a consequence of influence of the local

MLA.

What is surprising to note is that in the communication made by the MLA Mr. Puran Singh Phartiyal on 26.04.2017, he without any material before

him, without their being any proceedings drawn by the competent authority, he himself unilaterally has drawn a conclusion that the duties discharged by

the petitioner is not satisfactory for the reason that his working style is not satisfactory. Letter dated 26.04.2017 is quoted herein below:

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                                   29.04.2017

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                                   26.04.2017

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,

26.04.2018

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As rec.

DM

Wants transfer in Tanakpur

01-05-2017

The haste with which the impugned action has been taken also smacks malice, because MLA wrote letter for transfer to the Hon’ble Chief

Minister on 26.04.2017, the Hon’ble Chief Minister endorses letter, recommends transfer on 29.04.2017, for taking immediate action. On 02.05.2017

Additional Secretary without application of any rational mind directs DM to transfer the petitioner, and inform State about the action taken.

In a judgment ‘Akash Sharma vs. State of U.P. and other’ reported in 2007 (4) AWC 3899 the Hon’ble Apex Court has taken a view in

paragraph 22, 24, 25 and 26, which are quoted herein below:

“22. Since the Court had noticed gross irregularity committed by the respondents, it became necessary for the Court to interfere. Its time to turn the

searchlight on the State Government and remind them that the transfer policy should not be taken lightly and should not be made a mockery of its own

transfer policy. Its high time that the State Government makes a little introspection and examine what it had been doing for the last decade or so in using

the transfer policy as a tool to transfer Government employees on the whims and fancy of the politicians.

The State Government has framed a transfer policy. It is the duty of the State Government to implement the policy. Even if the Government servant

disagrees with the policy, nonetheless, the same has to be implemented. The policy has been framed so that the transfer of an employee is implemented.

The policy has not been framed to enable the employee or the State Government to misuse it with impunity. In the opinion of the Court, the transfer and

posting of a Government employee should not be made at the behest of Minister. Transfer has to be made on administrative grounds or in public

interest. Transfer should not be made on political considerations, or on the policy of pick and choose or on the ground of favouritism.

In Pradeep Kumar Agrawal v. Director, Local Bodies, U.P. IV, Lucknow and others, (1994) 1 UPLBEC 189, a Division Bench of this Court held:

“It would be appropriate to observe here that in a democratic set up like ours, bureaucrats are expected to act and discharge their executive

functions impartially and strictly in accordance with the Rules and Regulations. No doubt, as of right no Government servant can claim to be posted

either on a particular station or post, therefore the transfers are to be done only in administrative exigencies and in public interest, but in the instant case

the letter written by the aforesaid M.P. addressed to Minister for Urban Development bearing endorsement of the officers of the State Government,

indicates that instant transfer has neither been made in administrative exigency nor in public interest. It is not only a matter of surprise but highly

objectionable that bureaucrats are dancing at the tunes of such letters ignoring the well-settled norms meant for transfer.â€​

In view of the aforesaid, it is clear that the State Government has not acted in accordance with the transfer policy and has violated its own transfer

policy with impunity. The transfer orders has been amended, cancelled at the whims of the local politician who did not want the Government employee

to be transferred. The cancellation, modification or amendment in the transfer orders was not in public interest or on administrative grounds, but on

account of personal interest of the politician or of the Government employee itself.â€​

This Court feels that, being an elected representative of the public, the MLA cannot adorn himself with an administrative authority to asses the

performance of a public duty by a public officer or an employee. Such type of recommendation made by the MLAs is not within the ambit of

competence of his powers and they ought to confine their duties which have been vested with them in the capacity of being the public representative

under law. They cannot overspread their powers by interfering in administrative work which is an exclusive prerogative of Administration and

Competent Authorities. The instant case is the best example of abuse of power by the politicians.

What is surprising is that on this recommendation made on 26.04.2017, even Hon’ble the Chief Minister has proceeded to take an immediate

action and on 29.04.2017 issued direction to Secretary Revenue. The mode of transfer as has been restored to by the respondent is strongly deprecated

by this Court as if it is permitted to be carried it would lead to an absolute anarchism in the administration and it will given a latitude of the politician and

other superior officers to work according to their own wisdom and it cannot be ruled out that it would also attach unfairness in the decision making

process being motivated by monetary gains.

This action is also deprecated for the reason that transfer of an employee on direction of politicians does not happens to be a process, which is

contemplated under the Transfer Act of 2017, hence also, once a statute has been framed by State, exercising powers under Article 309 of the

Constitution of India regulating the modalities and conditions for transfer of an employee the transfer ought to have been governed under the Act itself

and not on the dictates and personal wisdom of the MLA Mr. Puran Singh Phartiyal.

In that view of the matter, the transfer order dated 23.05.2017 cannot be sustained and is hereby quashed. Writ Petition is allowed.

The respondent no. 2 is directed to forthwith place the petitioner back to the place from where he has been transferred on the basis of the impugned

order dated 23.05.2017.

However, there would be no order as to cost.